Companies

Over the span of two decades, Monsanto accumulates approximately 650 plant-related biotech patents, including the patent on the 35S promoter, a genetic mechanism used extensively in the biotech industry. All biotech companies using the promoter must pay Monsanto a technology use fee. By 2004, the company has a 29.82 percent share of all research and development in the biotech industry. [Center for Food Safety, 2005, pp. 13 ]

Monsanto’s “Technology Use Agreement” requires farmers to pay a $12 ($15 CAD) technology fee for every acre they plant with Monsanto’s patented seed. Farmers pay the fee to the store where they purchase the seed. Under the terms of the agreement, farmers must deliver all of their crop to an elevator or crushing plant—they are prohibited from saving and replanting any harvested seed. They therefore must purchase new seed every year. They are also prohibited from making the seed available to other farmers, a practice known as “brown-bagging.” [Washington Post, 2/3/1999; Canadian Business, 10/8/1999]
“Monsanto effectively gains a license to control the seed even after the farmer has bought, planted, and harvested it,” notes a 2005 report by the Center for Food Safety. [Center for Food Safety, 2005, pp. 13 ] For thousands of years farmers have been planting the seeds they collected from the previous year’s harvest. Monsanto’s restrictions therefore cause great concern among organizations that deal with global food security since three-quarters of the world’s food producers are subsistence farmers who plant saved seeds. [Washington Post, 2/3/1999] The contract also gives Monsanto the right to come onto a farmer’s land to take plant samples for three years after a farmer has stopped using the company’s seed. Another stipulation in the contract specifies that farmers can only use Monsanto’s Roundup herbicide. This clause virtually guarantees Monsanto a dominant share in the non-selective herbicide market for its Roundup herbicide—which has no patent protection in Canada and whose patent in the US expires in 2000. Though many farmers are reportedly happy with the product, few like the provisions in this contract. [Washington Post, 2/3/1999; Canadian Business, 10/8/1999]
“This is part of the agricultural revolution, and any revolution is painful. But the technology is good technology,” says Karen Marshall, a Monsanto spokeswoman. The company says the no-replant policy is necessary in order to recoup the millions of dollars it has spent on research and development. The company claims its genetically modified seeds are increasing farmers’ yields and making it possible for them to use more environmentally-friendly pesticides. [Washington Post, 2/3/1999]

Kirk Azevedo lands a job with the Monsanto Company. Young and idealistic, he is later described by author Jeffrey Smith as the “perfect candidate to project the company’s ‘Save the world through genetic engineering’ image.” He is fascinated with the company’s CEO, Robert Shapiro, who talks about genetically modified organisms being used to “reduce the in-process waste from manufacturing, turn our fields into factories and produce anything from lifesaving drugs to insect-resistant plants,” Azevedo later recalls. But three months after taking the job, after a meeting at the company’s headquarters in St. Louis, a vice president tells him, “What [CEO] Robert Shapiro says is one thing. But what we do is something else. We are here to make money. He is the front man who tells a story. We don’t even understand what he is saying.” [Spilling the Beans, 6/2006]

Monsanto spends $8 billion acquiring, or establishing relationships with, several US and foreign seed companies. [Canadian Business, 10/8/1999; Center for Food Safety, 2005, pp. 9-10 ] The list of companies includes: Calgene, Inc.; Asgrow Agronomics; Asgrow and Stine Seed; Agracetus; Holden’s Foundation Seeds, Inc.; Monsoy (a Brazilian soybean company); Cargill’s international seed divisions (with operations in Asia, Africa, Europe, and Central and South America); Plant Breeding International; and DeKalb Genetics (the world’s second largest seed company). Pioneer Hi-Bred is the only major US seed company that Monsanto does not buy out. However, Pioneer has purchased rights from Monsanto to use technology relating to Roundup Ready soybeans and Bt corn. A 2005 report by the Center for Food Safety will say that one of the factors contributing to Monsanto’s cornering of the GM market (see 1998 and later) is its control of these seed companies. “[T]hese companies (often owned or indirectly controlled by Monsanto) had to agree that 90 percent of the sales of herbicide-tolerant soybeans would contain Monsanto’s patented technology. This requirement was later dropped to 70 percent after Monsanto came under scrutiny from government regulators. Through this sort of ownership and control of seed companies, Monsanto has been able to ensure that competition [will] remain small and that its patented genetically engineered crop varieties [will] be the ones most readily available to the American farmer.”
[Center for Food Safety, 2005, pp. 9-10 ]

To enforce its “Technology Use Agreement” (see 1996), Monsanto sends detectives into farming communities to ensure that all fields planted with its patented seeds have been paid for. Farmers call them the “Monsanto police.” In the US, Monsanto has a contract with Pinkerton Security and Consulting. In Canada, the company uses Robinson Investigation Canada Ltd., which employs a team of former Royal Canadian Mounted Police. Monsanto also encourages farmers to use a toll-free “tip line” to blow the whistle on noncompliant neighbors. According to one farmer, Monsanto promises to reward snitchers with a leather jacket, an allegation that Monsanto denies. [Washington Post, 2/3/1999; Canadian Business, 10/8/1999] Another tactic employed by the company is to place radio ads broadcasting the names of growers caught illegally planting Monsanto’s seeds. [Washington Post, 2/3/1999] Monsanto threatens legal action against any farmer who it believes has violated the agreement. Suing one’s own customers “is a little touchy,” Karen Marshall, a Monsanto spokeswoman, concedes, adding that after spending so much money on research, Monsanto doesn’t want “to give the technology away.”
[Washington Post, 2/3/1999] Craig Evans, the head of Monsanto’s Canadian biotechnology operation in Winnipeg, says: “At the end of the day if we don’t enforce our patent rights, the potential for new technology to come forward to maintain the competitiveness of the industry could disappear, because if you can’t get the return, then you’re going to take your technology somewhere else. We’re just trying to be fair. All I’m trying to do is fulfill the promise of the growers who said, ‘Monsanto, I’m willing to pay you for your technology as long as everyone’s paying.’”
[Washington Post, 2/3/1999] Critics say Monsanto’s actions are tearing away at the social fabric that has traditionally held farming communities together. [Washington Post, 2/3/1999; Star Phoenix (Saskatoon), 4/14/2005]
“Farmers here are calling it a reign of terror,” according to canola farmer Percy Schmeiser. “Everyone’s looking at each other and asking, ‘Did my neighbor say something?’”
[Washington Post, 2/3/1999] “Our rural communities are being turned into corporate police states and farmers are being turned into criminals,” Hope Shand, research director of Rural Advancement Foundation International, explains to the Washington Post in 1999. [Washington Post, 2/3/1999]

Between 1997 and 2002, Monsanto makes at least $700,000 in illicit payments to at least 140 current and former Indonesian government officials and their family members in an effort to obtain legislation and ministerial decrees supporting the cultivation of genetically modified crops. The payments are made through Monsanto’s affiliates and representatives who have offices in Jakarta. The largest payment is for $373,990, which is used to design and build a house for a senior Ministry of Agriculture official. Monsanto even purchases the land for the house. “Other examples of improper payments include, among others, payments to a senior official of Budget Allocation at the National Planning and Development Board, totaling $86,690, and payments to other Ministry of Agriculture officials, totaling $8,100,” according to the US Securities and Exchange Commission. $29,500 is given to officials at the agriculture ministry in South Sulawesi, where the first shipment of Monsanto cotton is sent in 2001 (see March 15, 2001). [Reuters, 1/7/2001; Jakarta Post, 1/10/2001; US Securities and Exchange Commission, 1/6/2005; BBC, 1/7/2005] The payments are financed in part “through unauthorized, improperly documented and inflated sales of Monsanto’s pesticide products in Indonesia,” Monsanto later admits. [Monsanto, 1/6/2005]

According to Kirk Azevedo, Monsanto’s facilitator for genetically modified cotton sales in California and Arizona, he learns from a Monsanto scientist that the company’s GM Roundup Ready cotton not only contains the intended protein produced by the Roundup Ready gene, but also contains additional proteins that are not naturally produced in the plant. These unknown proteins were created during the gene insertion process, the scientist reportedly explained to Azevedo, when the modified genes were inserted into the plant’s DNA using a “gene gun.” Azevedo, who has been studying mad cow disease (bovine spongiform encephalopathy), becomes concerned that these abnormal proteins “might possibly lead to mad cow or some other prion-type diseases.” When he shares this concern with the scientist, he discovers that the scientist has no idea what he is talking about. “He had not even heard of prions. And this was at a time when Europe had a great concern about mad cow disease and it was just before the Nobel prize was won by Stanley Prusiner for his discovery of prion proteins,” Azevedo later recalls. [Spilling the Beans, 6/2006] Azevedo will become even more concerned when he learns that Monsanto scientists are feeding experimental GM cotton plants to cattle (see Summer 1997).

Kirk Azevedo, Monsanto’s facilitator for genetically modified cotton sales in California and Arizona, will later say that around this time he discovered that Monsanto is feeding GM cotton plants from test fields to cattle. “I had great issue with this. I had worked for Abbot Laboratories doing research, doing test plots using Bt sprays from bacteria. We would never take a test plot and put [it] into the food supply, even with somewhat benign chemistries. We would always destroy the test plot material and not let anything into the food supply.” When he explains to the Ph.D. in charge of the test plot that feeding experimental plants containing unknown proteins (see 1996) to cows is a potential health risk to humans, the scientist refuses to end the practice. “Well that’s what we’re doing everywhere else and that’s what we’re doing here,” Azevedo recalls the scientist saying. Azevedo then raises his concerns with other employees in Monsanto. “I approached pretty much everyone on my team in Monsanto” but no one seemed interested, and in fact, people started to ignore him. Next, he contacts California agriculture commissioners whose responsibility it is to ensure that the management and design of test plots do not pose any risks to public health. But, “once again, even at the Ag commissioner level, they were dealing with a new technology that was beyond their comprehension,” Azevedo later explains. “They did not really grasp what untoward effects might be created by the genetic engineering process itself.” He also tries unsuccessfully to speak with people at the University of California. Frustrated with the company and the government’s apparent lack of concern, he quits his job at Monsanto in early January 1998. [Spilling the Beans, 6/2006]

As part of an effort to increase the acceptance of genetically modified crops in Indonesia, Monsanto contracts PT Harvest International, a Jakarta-based investment consulting firm. The firm helps Monsanto secure the various government approvals and licenses necessary to sell its products there and also lobbies and allegedly bribes government officials (see Late June 2002)
(see September 2000). Much of the lobbying is aimed at opening the country up to Monsanto’s Bollgard Bt cotton, which Monsanto says is environmentally-friendly and less reliant on pesticide. The company also claims its genetically modified seeds will produce as much as 3 tons of cotton per hectare. Much of Harvest’s work is coordinated and overseen by a US-based senior Monsanto manager and two Monsanto-controlled entities based in Jakarta: PT Monagro Kimia and PT Branita Sandhini. [Jakarta Post, 1/10/2001; Institute for Science in Society, 12/5/2004; US Securities and Exchange Commission, 1/6/2005]

Monsanto has become the world’s largest supplier of genetically modified seeds and the second largest seller of all seed types. Only Pioneer Hi-Bred, soon to be purchased by Dupont (see March 14, 1999), sells more seeds than Monsanto. Within the US, Monsanto directly or indirectly controls nearly half the corn germplasm market and most of the soybean market. Its dominant position in the market has been attributed to several factors: its two-year buying spree of other seed companies (see 1996-1998), its control of a large percentage of the biotech industry’s plant patents (see 1980s-2004), and the Technology Use Agreement (see 1996) it forces farmers to sign. According to a 2005 report by the Center for Food Safety (CFS), the availability of conventional seeds to farmers worldwide has been dramatically reduced as a result of Monsanto’s control of the market. “For many farmers across the country, it has become difficult if not impossible, to find high quality, conventional varieties of corn, soy, and cotton seed. Making matters worse, the direction of land-grant university research has been shifting away from producing new conventional seed varieties and toward biotech applications,” the report says. Indiana soybean farmer Troy Roush tells the Center, “You can’t even purchase them in this market. They’re not available.” Another farmer interviewed by the organization, a Texan, similarly states, “Just about the only cottonseed you can get these days is [genetically engineered]. Same thing with the corn varieties. There’s not too many seeds available that are not genetically altered in some way.”
[Center for Food Safety, 2005, pp. 9-10 ]

Monsanto says it will purchase Delta & Pine Land Company, the company that shares a jointly-held patent on terminator technology with the US Department of Agriculture (see March 3, 1998). [Ecologist, 9/1998] The acquisition will be stalled by US anti-trust agencies, and in December 1999 Monsanto will drop its bid (see December 19, 1999).

A group of Monsanto-hired consultants urge some of Africa’s most prominent academics and politicians to sign a public statement titled, “Let the Harvest Begin.” It would be published “in major European newspapers in early June.” The statement argues that biotechnology is the answer to world hunger. “Many of our needs have an ally in biotechnology and the promising advances it offers for our future,” the statement reads. “With these advances, we prosper; without them, we cannot thrive… Slowing its acceptance is a luxury our hungry world cannot afford.” Monsanto’s name appears on the draft declaration in tiny text. According to reporter and columnist George Monbiot, “readers could be forgiven for imagining that the statement is the initiative of the signatories, rather than the company.”
[Global Business Access Ltd, n.d.; Guardian, 6/4/1998]

During a debate on terminator technology held during the UN Food and Agriculture Organization (FAO) Commission on Genetic Resources for Food and Agriculture in Rome, Harry Collins, Delta and Pine Land’s vice president for technology transfer, distributes a paper in which he claims, “The centuries old practice of farmer-saved seed is really a gross disadvantage to Third World farmers who inadvertently become locked into obsolete varieties because of their taking the ‘easy road’ and not planting newer, more productive varieties.”
[Collins, 1998; Ecologist, 9/1998]

According to Canadian canola farmers Ed and Liz Kram of Raymore, Saskatchewan, a plane flies over their farm and spray-bombs three 160-acre fields with a herbicide destroying about half an acre in each field. They believe the herbicide was Roundup and that the bombing was done on behalf of Monsanto to determine if they were growing Roundup Ready Canola without having paid Monsanto’s $15 CAD/acre fee. The Krams believe Monsanto was involved because one of the company’s investigators visited them before the incident inquiring about their canola crop. A government representative who comes out to the farm to investigate the incident suggests the crop damage was caused by lightening strikes. “You think lightening struck in the center of all three of my canola quarters?” Kram asks. The representative then takes a sample to a lab. Testing indicates the presence of a chemical, but is presumably unable to determine what kind. Monsanto denies any connection to the incident. [Canadian Business, 10/8/1999]

Monsanto files a lawsuit against Percy Schmeiser alleging that in 1997 or earlier Schmeiser illegally obtained Roundup Ready Canola seed from an unnamed Monsanto-licensed farmer, planted his fields with the seed, and then saved the seed for the following year’s planting without ever having entered into an agreement with Monsanto. In doing so, Monsanto claims, Schmeiser infringed on its patent. According to Schmeiser, the presence of Monsanto’s patented genes in his crop was a result of infestation, possibly resulting from wind-blown pollen or seed. He recalls that in 1997 (see Summer 1997), after spraying Roundup in his ditches and around telephone poles adjacent to his canola field, approximately 60 percent of the canola plants in that area survived. He then proceeded to spray a trial strip roughly 100 feet wide in the adjacent field which also revealed the presence of Roundup-resistant canola. In 1998, he used the seed from that field mixed in with seed from previous years to plant his 1998 crop (see Spring 1998). [Alberta Report, 9/6/1999; Monsanto Canada Inc. v. Percy Schmeiser, 3/29/2001, pp. 5 ]

Darwin Murrell of the US Department of Agriculture (USDA) emails a memo informing the department’s scientists that any research into terminator technology must now be reviewed by senior managers. The USDA jointly holds a patent on the technology with Delta & Pine Land (see March 3, 1998). This is a “sensitive issue,” Murrell says. “Imposing an extra level of review for this research will not create undue delays nor will it restrict the creative talents of our scientists, but it will help them avoid potential political and legal pitfalls.”
[New Scientist, 10/10/1998]

Delta & Pine Land, a US seed company, dumps 30,000 sacks of expired chemical-coated cotton seed on a one-hectare area of land in a small rural community in Paraguay. This happens twice—once in November 1998, and then again in January, the following year. The dump site is only about 170 meters from a school in Rincon’I, a small community of around 3,000 people located about 120 kilometers from Asuncion. The seeds have a coating comprised of Orthene (acefate), benlate, lorsban, Metalaxyl, baytan-Thirann, and Kodiac (a genetically modified bacterium). The pesticides alone are estimated to account for 5 tons of the 660-ton pile. Labels on the seed bags reveal the presence of carcinogenic chemicals and warn that they can cause genetic mutations. At least one person dies as a result of exposure to the seeds. Agustin Ruiz Aranda, a 30-year-old father of four, dies on December 28, 1998. His wife is five months pregnant. The cause of death is recorded as “acute intoxication by contamination from toxic agrochemicals.” His symptoms were reportedly identical to those associated with intoxication with acephate and metamidophos. Acephate, one of the chemicals present in the seeds, turns into metamidophos when combined with water. Residents of Rincon’I complain of headaches, nausea, faintness, insomnia, and dizziness. Children suffer appetite loss and get welts on their skin. Physician Pablo Balmaceda sees 74 Rincon’I residents and finds that every one of them has been poisoned with organophosphates. A Brazilian biochemist, Lenini Alves de Carvalho, confirms Balmaceda’s conclusions. Agronomist Sebastian Pinheiro, director of the IUF’s Department of Health and the Environment, tells Inter Press Service, “There are no precedents that can help us predict what could happen. But people who have been contaminated will probably experience a decline in their natural defenses, and show a tendency to develop serious diseases.” A report dated April 21, 1999 by the Paraguayan Department for Environmental Protection will also confirm the presence of toxins, and it will warn that potential long-term risks include “genetic alterations, cancers, and poisoning.” It also finds contamination in the soil and water table and calls for more investigation. The incident is reported widely in Paraguay, but makes no headlines in the US. After a court ruling, the company admits that it dumped the seeds but refuses to acknowledge their toxicity. [Inter Press Service, 6/4/1999; Rural Advancement Foundation International, 6/22/1999; International Union of Food Workers, 6/25/1999] In mid-1999, Roger Malkin, president of Delta & Pine Land, will say that “investigations by the Paraguayan health and environmental agencies involved have been unable to identify a single case in which the health of people or the environment was affected” by the seed disposal. [Global Pesticide Campaigner, 8/1999] Rather than clean-up the site, the company offers monetary compensation and suggests that seeds could be used as green manure to fertilize the fields. “The tragic irony,” says Miguel Lovera, who works for an Asuncion-based organization, “is that the biotech industry promised to clean up the environment and help feed hungry people. Instead, my country is being used as a dumping ground for high-tech seeds and deadly chemicals that are contaminating rural communities and endangering lives.” Only the Geneva-based International Union of Food and Agricultural Workers offers the community of Rincon’I any help. Even Paraguay’s government resists helping the community. [Inter Press Service, 6/4/1999; Rural Advancement Foundation International, 6/22/1999; International Union of Food Workers, 6/25/1999]

Monsanto has taken legal action against more than 525 farmers whom it has accused of illegally planting its patent-protected seeds. About half of these cases have so far ended with settlements ranging from tens to hundreds of thousands of dollars each, according to Lisa Safarian, Monsanto’s intellectual property protection manager. The Washington Post reports that according to Safarian, Monsanto “has decided that the risk of alienating some farmers is more than offset by the benefit of being able to promise ‘a level playing field’ for the vast majority of honest customers.” Safarian says that money from the settlements are funding a Monsanto-created scholarship fund to help the children of farmers go to college. [Washington Post, 2/3/1999] The money also goes toward other educational programs, such as biotechnology acceptance programs. [Canadian Business, 10/8/1999] Farmers who choose to settle with Monsanto must pay the $12 ($15 CAD)/acre fee and all the profits from the illegally planted crop. The farmer must also sign a contract waiving his or her right to speak publicly about the settlement. Monsanto, on the other hand, explicitly reserves its right in the agreement to comment publicly on the matter. [Canadian Business, 10/8/1999]

Just three years after its introduction into the market (see 1996), Monsanto’s Roundup Ready Canola is being grown by some 20,000 Canadian farmers, representing nearly half of Canada’s canola market. [Canadian Business, 10/8/1999]

Farmers interviewed by the Washington Post have different opinions of Monsanto’s genetically engineered seeds. [Washington Post, 2/3/1999] Ted Megginson, a soybean farmer in Auburn, Illinois, says: “We’re not doing this [farming] for a hobby. We’re looking for net dollars. They’re not holding a gun to my head to make me buy their seeds.”
[Washington Post, 2/3/1999] Tim Seifert, a soybean farmer from Illinois, tells the newspaper, “It’s made me a better farmer.” He adds that he saved $5 to $6 an acre the previous year in reduced labor and pesticide costs after planting his fields with Monsanto’s pesticide-resistant soybeans. [Washington Post, 2/3/1999] Vincent Moye, a farmer in Reinbeck, Iowa, says: “Every year I get catalogues from the seed salesmen, and more and more varieties have the Roundup Ready gene even though I don’t need it. The government’s looking at Microsoft too hard. This is a bigger monopoly. We’re all gonna be serfs on our own land.”
[Washington Post, 2/3/1999]

Canadian farmer Charlie Boser discovers between 300 and 500 Roundup Ready Canola plants in a field that was sprayed twice for weeds with Roundup mixtures. “Everything along that quarter was burnt to a crisp quite brown except for the canola,” he later testifies in court. The plants had apparently come to his fields from the east. “I was a little upset to have this contaminant on my land. I’d never used a Roundup Ready Canola.” He contacts Monsanto, who compensates him for one of his spray applications and pays the person who had done the chemical fallow to “get some kids to come pick it out,” according to Boser. A Monsanto representative later informs him that a field adjacent to his was planted with Roundup Ready Canola. [Alberta Report, 9/6/1999; Star Phoenix (Saskatoon), 6/16/2000; Western Producer (Saskatoon), 6/22/2000]

Canadian farmer Louie Gerwing finds canola plants thriving in a fallow field he sprayed with herbicide. He brings a Monsanto-hired investigator to the property who determines it is Monsanto’s Roundup Ready Canola. The investigator documents the infestation on film and then removes the plants by hand. The field, which runs along a busy provincial grid road, contained plants as far as 1000 feet away from the road. It had previously been planted with barley, wheat, and peas. Gerwing speculates that Roundup Ready Canola seeds must have been blown off passing grain trucks during the winter and then distributed around his field by drifting snow. [Alberta Report, 9/6/1999; Star Phoenix (Saskatoon), 6/16/2000]

Percy Schmeiser finds several Roundup Ready Canola volunteers growing in his fields. (Volunteers are plants that grow where they are not wanted.) He contacts Monsanto about the canola plants, but the company’s representatives do not come out to his farm to inspect them. [Star Phoenix (Saskatoon), 6/14/2000]

In an interview with the Alberta Report, Craig Evans, general manager of biotechnology for Monsanto Canada, refuses to say whether or not Monsanto accepts the responsibility of removing Roundup Ready Canola plants that spread to fields where they are not wanted. “We have 55 representatives out there to help all growers with all weed control problems,” says Evans. “Covering costs depends on the situation. At the end of the day, I don’t want to say if we do or we don’t.”
[Alberta Report, 9/6/1999]

Dr. Gordon Conway, president of the Rockefeller Foundation, says in a speech before Monsanto’s board of directors: “The agricultural seed industry must disavow use of the terminator technology to produce seed sterility… The possible consequences, if farmers who are unaware of the characteristics of terminator seed purchase it and attempt to reuse it, are certainly negative and may outweigh any social benefits of protecting innovation.”
[Conway, 1/24/1999]

Monsanto CEO Robert B. Shapiro says in an open letter to Gordon Conway, president of the Rockefeller Foundation, that Monsanto is “making a public commitment not to commercialize sterile seed technologies, such as the one dubbed ‘terminator.’” Conway had asked the company’s board of directors to “disavow use of the terminator technology” (see June 24, 1999). Shapiro says the company still intends to research other technologies that would help the company protect its intellectual property rights Such technologies would include ways to switch certain genetic traits vital to a crop’s productivity on or off. Critics have called this technology “traitor” and say that, like terminator seeds, this technology would also threaten biodiversity, food security, and the 12,000 year old practice of seed saving. [Shapiro, 10/4/1999; BBC, 10/5/1999]

The Foundation on Economic Trends (FOET) files a class-action lawsuit against Monsanto on behalf of a group of Iowa, Indiana, and French farmers. The suit alleges that Monsanto failed to ensure that its genetically modified seeds were safe for consumers and the environment before it brought them to market. It also claims that the company, which has bought out numerous seed companies in recent years (see 1996-1998), seeks to control world production of agriculture and food through the spread of its patented genes. “Through various anti-competitive practices, it seeks to control world production of agriculture and food, with particular concentration on power over seeds,” says Jeremy Rifkin, the foundation’s president. “What this means is that if the companies get their way, no farmer in the world will ever own a seed again. If that doesn’t hold implications for anti-trust law in the world of agriculture, then I don’t know what does.”
[Reuters, 12/15/1999]

Biotech giant Monsanto and drug maker Pharmacia & Upjohn Inc. agree to merge. Together the two companies have a combined market value of about $52 billion. [New York Times, 12/20/1999] Shortly after the merger announcement, Monsanto says it has decided to drop its bid (see May 11, 1998) for Delta & Pine Land, the cotton seed company that shares a patent (see March 3, 1998) with the Department of Agriculture for terminator technology. [Reuters, 12/22/1999]

Monsanto’s 2005 “Technology Use Agreement” (TUA) includes several provisions that were not present in its 1996 agreement (see 1996). The company’s TUAs have been heavily criticized by farmers and groups concerned about food security and farmers’ rights because of its provisions barring farmers from saving and replanting seed. Another part of the contract that has been unpopular among farmers is the requirement that farmers grant Monsanto the right to come onto a farmer’s land to take plant samples any time during the first three years after a farmer has stopped using the company’s seed. Some of the provisions that have been added since 1996 state the following: All legal disputes (except those involving cotton) must be settled at the US District Court for the Eastern District of Missouri or the Circuit Court of the County of St. Louis. Farmers must give Monsanto permission to access third-party records of the farmers’ activities, such as those held by USDA Farm Service Agency (FSA). The Center for Food Safety notes: “The breadth of this provision allows the company to obtain documents that are not necessarily directly related to a farmer’s seed or chemical purchase, permitting Monsanto to assess a grower’s financial state.” Farmers are not required to do anything to prevent contaminating neighbors’ fields with Monsanto’s genes. Recognizing that a “minimal amount of pollen movement (some of which can carry genetically improved traits) between neighboring fields is a well known and normal occurrence in corn seed or grain production,” the agreement suggests that farmers planting the company’s seeds are not under any obligation to prevent the contamination of neighboring non-transgenic crop fields. Conventional farmers “assume the responsibility and receive the benefit for ensuring that their crop meets… specifications for purity,” the agreement asserts.

After Percy Schmeiser and Monsanto fail to reach an out-of-court settlement, Monsanto takes the 69-year-old canola farmer to court. Monsanto claims that in 1998, Schmeiser planted 1,030 acres with seed from his 1997 canola crop containing a gene or cell that was protected by Monsanto’s 1993 (see February 23, 1993) patent on glyphosate-resistant plants and that he did so without permission from Monsanto. The company further alleges that in doing so Schmeiser illegally used, reproduced, and created genes, cells, plants, and seeds containing the patent-protected genes and cells. According to Monsanto, it is of no consequence how the gene arrived in Schmeiser’s field; his mere planting of the gene constitutes infringement. The company is suing for the $15 CAD/acre technology fee that other farmers using the seed are required to pay (A total of $15,450 CAD), the profits resulting from Schmeiser’s 1998 crop ($105,000 CAD, according to Monsanto), interest, exemplary damages ($25,000 CAD), and court costs. [Toronto Star, 6/3/2000; Star Phoenix (Saskatoon), 6/6/2000; Star Phoenix (Saskatoon), 6/21/2000] Terry Zakreski, Schmeiser’s attorney, does not deny that the some of the canola plants in Schmeiser’s 1998 crop contained Monsanto’s patent-protected Roundup-resistant gene. However, he rejects Monsanto’s claim that Schmeiser infringed on the company’s patent when he planted the crop since the presence of Monsanto’s Roundup Resistance canola was not a result of any deliberate action on the part of Schmeiser. The defense suggests that Monsanto’s patented-gene arrived on Schmeiser’s property by way of pollination or wind-blown seed. [Alberta Report, 9/6/1999]Plaintiff Argument--Tests show high percentage of Roundup in sample taken from Schmeiser's 1997 crop - In spite of the fact that Monsanto’s argument does not hinge in anyway on how its Roundup Ready Canola came to grow on Schmeiser’s fields, it nonetheless attempts to make the case that the alleged high percentage of Roundup-resistant canola in Schmeiser’s 1997 crop was too high to have resulted solely from cross-pollination or wind-blown seed as Schmeiser claims. As evidence of this, Monsanto cites tests (see Fall 1997)
(see January 24, 2000) performed on plant samples taken in August of that year by Wayne Derbyshire (see August 18, 1997). Those tests found that the samples contained a very high percentage (more than 90 percent) of seeds containing the patented genes. Monsanto also introduces as evidence, tests performed on seeds given to Monsanto by Humboldt Flour Mills (see Between April 24 and April 28, 1998), the company that had inoculated Schmeiser’s seeds prior to the 1998 planting season. Tests later performed on those seeds found that 95 to 98 percent of them contained Monsanto’s patented gene (see April 2000; (August 26, 1999)). [Toronto Star, 6/6/2000; Star Phoenix (Saskatoon), 6/6/2000]Plaintiff Argument--Tests show high percentage of Roundup in Schmeiser's 1998 crop - Monsanto also presents evidence aimed at demonstrating that Schmeiser’s 1998 crop consisted almost entirely of plants containing Monsanto’s patented Roundup-resistant gene. As evidence, it cites tests performed on samples that were taken from Percy’s crop in the summer of 1998 (see August 12, 1998). The tests done by Aaron Mitchell of Monsanto on these samples indicated that between 92 and 97 percent of the seeds in the samples were resistant to Roundup (see January 1999). [Toronto Star, 6/6/2000; Star Phoenix (Saskatoon), 6/6/2000]Plaintiff Argument--Schmeiser used Roundup on his 1998 crop - In an effort to prove that Schmeiser’s 1998 crop consisted mostly of Roundup Ready Canola and that Schmeiser sought to take advantage of its resistance to the herbicide, Monsanto cites the testimony of Wesley Niebrugge, a farmer and employee of the Esso bulk dealership in Bruno. Niebrugge claims that in 1997 and 1998 Schmeiser’s farm hand Carlyle Moritz told him that Schmeiser had sprayed his fields with Roundup after having seeded his fields with Roundup Ready Canola. Monsanto argues that in spite of Schmeiser’s claims that he did not use Roundup on his crops in 1998, there is no evidence that he used Muster and Assure herbicides as claimed. Furthermore, Monsanto provides evidence that Schmeiser purchased 720 liters of Roundup in 1998. [Star Phoenix (Saskatoon), 6/17/2000]Plaintiff Argument--Roundup Ready Canola presence in Schmeiser's fields cannot be explained by windblown seed - Monsanto also argues that seed blown off the top of passing grain trucks could not have been responsible for the Roundup-resistant canola plants that Schmeiser found in his field more than 100 feet away from the road in 1997 (see Summer 1997). As evidence, Monsanto cites the testimony of Barry Hertz, a mechanical engineer hired by Monsanto because of his expertise in road vehicle aerodynamics. Hertz tells the court that according to his own calculations, canola seed blown off the top of a moving grain truck would fly no more than 8.8 meters from the road. His calculations are based on the weather conditions recorded at the Saskatoon airport in October and May of 1996, 100 kilometers away from Schmeiser’s farm. [Star Phoenix (Saskatoon), 6/9/2000; Canadian Press, 6/9/2000]Plaintiff Argument--Schmeiser segregated his crop - Monsanto argues that Schmeiser segregated his crop when he chose to save and plant the seeds harvested from the same field where he knew Roundup Ready plants had grown. The company’s lawyer questions why he would have done so if he considered those plants to be a contaminant on his land. [Star Phoenix (Saskatoon), 6/15/2000]Defense Argument--Schmeiser did not undertake any deliberate action to obtain Monsanto's Roundup Ready Canola - According to Schmeiser, the presence of Monsanto’s patented gene in his crop was not a result of any deliberate action he took. Rather he suggests that his crop was likely contaminated with Monsanto’s genes from wind-blown pollen or seed. Zakreski notes that there is no evidence whatsoever that Schmeiser illegally obtained Roundup Ready Canola seed. Monsanto has never identified anyone who may have sold Roundup Ready Canola seed to Schmeiser, and Schmeiser has never admitted to having acquired the seed. Monsanto employee Aaron Mitchell candidly testifies to this fact on the stand. [Star Phoenix (Saskatoon), 6/9/2000; Star Phoenix (Saskatoon), 6/13/2000] Percy Schmeiser’s field hand, Carlyle Moritz, testifies that swaths from a neighboring canola field planted with Monsanto’s Roundup Ready Canola blew onto one of Schmeiser’s fields in 1996 (see Fall 1996). The swaths were subsequently picked up by a combine on Schmeiser’s fields and deposited in the grain bins on that field. The defense believes it is possible that some of the seed from that bin was used to plant Schmeiser’s 1997 crop. [Federal Court of Canada, 6/22/2000, pp. 6 ] Schmeiser recalls that in 1997 (see Summer 1997), after spraying Roundup in his ditches and around telephone poles adjacent to his canola field, approximately 60 percent of the canola plants in that area survived. Curious about the possibility that his canola plants may have developed a resistance to Roundup, he sprayed a trial strip about 100 feet wide in one of the fields that is next to the road. The total area of the strip was a “good three acres,” he says. As a result of the spraying, roughly 40 percent of the canola plants died. The surviving 60 percent were scattered in clumps and were mostly concentrated near the road. He believes that the uneven presence of clumps that were thicker closest to the road and thinner towards the center of the field is evidence that plants had been sown from seed coming from the direction of the road, probably from seed blown off passing grain trucks in late 1996. Zakreski argues that Schmeiser’s plants may have been pollinated with pollen transported by wind or other means from a neighboring farm. He notes that Monsanto scientist Robert Horsch has acknowledged in court testimony that the company’s dominant Roundup-resistant gene would be present in any pollen from a Roundup Ready Canola plant and therefore could pollinate non-transgenic plants. Zakreski also cites the testimony of Monsanto witness Keith Downey that “one hungry bee” is capable of traveling a great distance. Even though Monsanto employee Aaron Mitchell testified that the closest field planted with Monsanto licensed Roundup Ready Canola seed was approximately five miles away, Zakreski notes that it is impossible to state for sure that someone was not illegally growing it closer. [Star Phoenix (Saskatoon), 6/6/2000; Federal Court of Canada, 6/22/2000, pp. 28 ; Monsanto Canada Inc. v. Percy Schmeiser, 3/29/2001, pp. 16 ] Schmeiser’s neighbor Elmer Borstmeyer testifies that he grew Roundup Ready Canola under agreement for four years beginning in 1996 and that he drove his truck by four of Schmeiser’s fields after harvest. He recalls that on one or two of his trips, the tarp was loose, and he believes he lost a lot of canola seed. “The tarp acted like a cyclone,” he said. “I lost some seed. That’s for sure”
(see Fall 1996). [Star Phoenix (Saskatoon), 6/16/2000; Monsanto Canada Inc. v. Percy Schmeiser, 3/29/2001, pp. 50 ] Schmeiser’s lawyer cites other cases where farmers’ fields have been contaminated with Monsanto’s Roundup Ready Canola, including farmers Charles Boser (see Summer 1999) and Louis Gerwing (see Summer 1999). He also notes that just a few weeks before, Canadian canola seeds sold to Europe by Advanta Canada were discovered to have been contaminated with a small percentage of genetically modified (GM) seeds (see May 2000). [Star Phoenix (Saskatoon), 6/16/2000] Zakreski also addresses the various tests that were conducted on samples taken from Schmeiser’s 1997 and 1998 crops. Monsanto had used some of the tests as evidence to argue that more than 90 percent of the plants in some of Schmeiser’s fields contained Monsanto’s patented gene. Of the samples that were taken by Wayne Derbyshire in 1997 (see August 18, 1997) and used as the basis for two grow-out tests (see Fall 1997)
(see January 24, 2000), and of the samples that were taken by Don Todd and James Vancha in 1998 (see August 12, 1998) and used for a grow-out test performed by Aaron Mitchell (see January 1999), Zakreski argues that they were all (1) taken illegally, and should not be admitted by the court; (2) taken using a methodology that was not intended to be representative of the fields from which they were taken; and (3) were not obtained, stored, or tested in a scientific manner or by independent parties. [Federal Court of Canada, 6/22/2000 ] Of the samples that were handled by Aaron Mitchell before being sent to and tested by Keith Downey on January 24, 2000 (see January 24, 2000), Zakreski questions (1) why so many seeds were apparently missing from the coin envelopes; and (2) why there were cleaver seeds, debris, and cracked seeds present in this sample—presumed to have been taken directly from canola pods. [Federal Court of Canada, 6/22/2000, pp. 18 ] Zakreski also challenges the authenticity of seeds used in a grow-out test that was performed by Aaron Mitchell in January 1999 (see January 1999). He asks how it came to be that seeds Mitchell brought to Leon Perehudoff were clean when in fact the seeds in the original sample contained debris. Though Mitchell claims to have cleaned the seeds by hand in a matter of an hour, plant biologist Lyle Friesen, another witness, testifies that such a task should have taken “days” to do by hand. Zakreski also notes that is unclear why the seeds Mitchell planted enjoyed a 100 percent germination rate when Friesen and experts at Monsanto headquarters in St. Louis were able to get only about half their seeds—presumably taken the same day as Mitchell’s seeds—to grow. [Federal Court of Canada, 6/22/2000, pp. 23-25 ] Additionally, Zakreski questions the authenticity of the seed samples that Monsanto obtained from Humboldt Flour Mills (see Between April 24 and April 28, 1998). The seeds tested by Monsanto had apparently been cleaned, when in fact the seeds supplied to the mill by Schmeiser (see April 24, 1998) were bin-run seeds full of chaff. No evidence is provided by the plaintiff to explain how the seeds cleaned themselves. [Federal Court of Canada, 6/22/2000, pp. 19 ]Defense Argument--One must use a patented invention for there to be infringement - Zakreski argues that for a patent infringement to occur, one must use the invention. His argument can be summarized as thus: (1) Monsanto has a patent on a gene, not a plant; (2) it is not a patent infringement to merely possess a patented invention, one must either use, or intend to use, the patented invention in order for there to be an infringement; (3) the act of growing a plant that contains the patented gene does not imply the use of that gene since that gene is not needed for the plant to grow; (4) the use of a patented invention necessarily entails that the “object,” or “essence,” of a patent be utilized, which in this case is a cell’s resistance to Roundup; (5) to use Monsanto’s invention, one must therefore either use, or intend to use, Roundup on one’s crop; and (6) because Schmeiser did not use Roundup on his crop, he did not infringe on Monsanto’s patent. The evidence Zakreski provides to support this argument can be summarized as follows: (a) there was no motive for Schmeiser to acquire and use Monsanto’s patented technology; (b) Schmeiser did not attempt to segregate seed known to be Roundup-resistant from the rest of his seed and therefore had no intention of using the properties of Monsanto’s patented gene; and (c) Schmeiser’s 1998 crop was a mixture of Roundup-resistant and non-resistant canola plants and therefore Schmeiser derived no benefit from Monsanto’s technology; and (d) Schmeiser did not, in fact, use Roundup on his 1998 crop. a - Using Roundup Ready Canola would have made it impossible for Schmeiser to grow canola back-to-back, his preferred method of growing canola (see 1994-1998). [Federal Court of Canada, 6/22/2000, pp. 2-3 ] The only benefit of using Roundup Ready Canola is that it allows one to spray Roundup herbicide on one’s crop. Roundup can only be applied after the weeds have germinated and there is weed foliage to spray. Schmeiser prefers not to spray weeds in his crop at this late stage because it would allow the weeds to use much of the soil’s moisture that would otherwise be available to the crop. Instead, he uses products that can be incorporated into the soil, or that kill weeds as they germinate (see 1994-1998). Furthermore, Schmeiser notes that Roundup is thought to leave a residue in the soil that kills mycorrhiza, a beneficial fungus that helps plants absorb nutrients in the soil. [Federal Court of Canada, 6/22/2000, pp. 3 ] Schmeiser prefers to save his seeds rather then buy new seeds each year, which he considers to be an unnecessary expense. [Federal Court of Canada, 6/22/2000, pp. 2 ] There was nothing wrong with Schmeiser’s seed stock that would have warranted interest in acquiring new seed. Schmeiser’s crops have performed much better than others in the area and are relatively free of common diseases that affect canola. Schmeiser has never had to file an insurance claim for his crop and because of this he receives a discount on his crop insurance premium. [Federal Court of Canada, 6/22/2000, pp. 2 ]b - Zakreski notes that in 1997, Schmeiser made no attempt to segregate the Roundup-resistant plants from the non-resistant plants in his fields. His farmhand, Carlyle Moritz, saved the seed from both the area where Roundup-resistant crop was known to have grown and other areas where these plants were not known to have grown (see Fall 1997). In spring 1998, these seeds were combined with bin-run seeds from previous years to sow Schmeiser’s canola crop (see Spring 1998). [Federal Court of Canada, 6/22/2000, pp. 11 ]c - Schmeiser’s attorney argues that Schmeiser had nothing to gain in planting a mixed crop of Roundup-resistant and non-resistant canola plants. “The advantage in growing Roundup Ready Canola is that a grower may spray in-crop with Roundup and achieve broad spectrum weed control. If a grower plants a crop which is a mixture of Roundup Ready and Roundup susceptible canola, he cannot spray in-crop with Roundup. To do so would be suicide.” [Federal Court of Canada, 6/22/2000, pp. 28-29 ]d - Schmeiser says that in 1998 the herbicides he used on his crops were the brand-names Muster and Assure. It would have made no sense, Zakreski argues, for Schmeiser to have knowingly planted Roundup Ready Canola. “It would make no sense if he knowingly proceeded to seed Roundup Ready Canola and not use Roundup,” notes Zakreski. [Leader Post (Regina, Saskatchewan), 6/13/2000] Schmeiser, however, as noted by the plaintiff, was unable to produce receipts showing he had used Muster and Assure on his canola. He explains that the Esso bulk dealership where he lives changed hands after 1998 and the new owners were unable to locate the receipts. [Star Phoenix (Saskatoon), 6/15/2000] Weed ecology expert Rene Van Acker testifies that the test results from Manitoba (which identified the presence of non-resistant canola plants in a sample taken from Schmeiser’s fields) (see (August 26, 1999)) prove that Schmeiser did not spray his fields with Roundup. If he had sprayed his fields, he would have killed much of his crop. “It would make no sense for a producer to sow Roundup Ready Canola and not use Roundup,” Van Acker recently wrote in a report requested by the defense. [Star Phoenix (Saskatoon), 6/17/2000] While Schmeiser did purchase 720 liters of Roundup in 1998, as noted by the plaintiff, Schmeiser says that he used this quantity of Roundup to clear his fields before spring planting and also to clear the weeds in the roadside ditches and around telephone poles. Schmeiser testifies that he would have used 515 liters of the herbicide to chem fallow his 1,030 acres leaving 205 liters for the ditches and right-of-ways. Zakreski’s final brief includes a table depicting Schmeiser’s use of the chemical in 1996, 1997, and 1998, demonstrating that the amount of Roundup used in 1998 was entirely consistent with the previous two years. Additionally, Schmeiser explains that if he had planted 100 percent Roundup Ready Canola that year, following Monsanto’s recommended application rate of 1 liter/acre, he would have needed an additional 1,000 liters, a claim that not one of Monsanto’s witnesses attempts to challenge. [Federal Court of Canada, 6/22/2000, pp. 13 ]Defense Argument--Monsanto's patent does not confer property rights - Another argument advanced by Schmeiser’s attorney is that because Monsanto’s patent does not confer ownership rights of the gene to the company, only intellectual property rights, the insertion of that gene into someone’s plant cannot possibly make that plant property of Monsanto. If the pollen produced by a Roundup Ready Canola plant fertilizes a non-transgenic plant owned by another farmer, Monsanto can claim no property rights to the plant’s offspring. [Federal Court of Canada, 6/22/2000, pp. 38-39 ] In support of this argument, Zakreski cites the similarity of this case to “stray bulls” cases in which the owners of cows impregnated by stray bulls owned by someone else have successfully sued for damages on the basis that early breading stunted the growth of their cows. In no such cases, notes Zakreski, has an owner of a stray bull attempted to claim any rights to the stray bull’s offspring. [Federal Court of Canada, 6/22/2000, pp. 38-39 ] Zakreski also states that the law of admixture applies to this case. The premise of that law is as follows: “… where a man willfully causes or allows property of another to inter-mix with his own without the other’s knowledge or consent, the whole belongs to the latter…”. [Federal Court of Canada, 6/22/2000, pp. 38-39 ]Defense Argument--Monsanto waved its patent rights when it released its invention unconfined into the environment - The defense also argues that Monsanto waived the patent rights on its invention when it failed to control the spread of its invention after it was released into the environment unconfined. The lawyer writes: “Had [Monsanto] maintained control over its invention, it may have maintained its exclusive rights. However, inventions do not usually spread themselves around. They do not normally replicate and invade the property and lands of others. Ever since regulatory approval for this invention was given, it has been released unconfined into the environment. Mr. Schmeiser has produced ample evidence of just how extensive the release is in the Rural Municipality of Bayne, where he farms. Any exclusive rights Monsanto may have had to its invention were lost when it lost control over the spread of its invention. Surely, the exclusive right to possess such an invention cannot be maintained if the spread of the invention cannot be controlled. The unconfined and uncontrolled release into the environment is an act by Monsanto completely inconsistent with its exclusive rights. It cannot on the one hand unleash self-propagating matter uncontrolled into the environment and then claim exclusively wherever it invades. It can, by this, be taken by its conduct to have waived its statutory rights.” Zakreski warns that giving Monsanto property rights to any and all genes or plants that result from the uncontrolled replication of its invention could potentially cause all Canadian canola farmers to lose their right to save and replant seed. “It can never be said with certainty that Monsanto’s gene will not soon be present on any canola field in western Canada. Accordingly, no farmer who saves and re-uses his seeds can be sure the Monsanto gene is not present in his seed supply.” Zakreski suggests: “Perhaps this is a benefit that Monsanto hoped to achieve by releasing their product into the environment without any control.” [Federal Court of Canada, 6/22/2000, pp. 39-41 ; Star Phoenix (Saskatoon), 6/22/2000] As evidence that Monsanto failed to control the spread of its invention, Schmeiser spends several hours showing the courtroom pictures he took in the vicinity where he lives of volunteer Roundup-resistant canola plants growing in ditches, flower beds, cemeteries, and roadways. He explains how he sprayed the plants with Roundup and then returned to see if they had survived. [Star Phoenix (Saskatoon), 6/14/2000]Defense Argument--Monsanto's patent is invalid; Monsanto's intellectual rights are protected under the Plant Breeders' Rights Act - Zakreski argues that a gene is “not the proper subject matter for a patent” and therefore the patent “should be declared invalid.” In support of this claim, he cites a federal appeals court’s 1998 decision in the case Harvard College v. Canada (Commissioner of Patents). In that case, the judges ruled that “A complex life form does not fit within the current parameters of the Patent Act… .” Zakreski further argues that there already is legislation—the Plant Breeders’ Rights Act—that protects the intellectual property rights of those who develop new plant varieties. He notes that unlike the Patent Act, the Plant Breeders’ Rights Act explicitly preserves farmers’ rights to save and re-plant their seed. [Federal Court of Canada, 6/22/2000, pp. 43 ]

Canadian Federal Judge Andrew MacKay rules in favor of Monsanto in its case against Canadian canola farmer Percy Schmeiser (see June 5, 2000-June 21, 2000). [Star Phoenix (Saskatoon), 3/30/2001]Judge MacKay decides the following: - That all test results submitted to the court as evidence by Monsanto was admissible and worthy of consideration by the court. The test results had indicated that a high percentage (in most cases, more than 90 percent) of the seed present in several samples presumably taken from Schmeiser’s canola fields contained Monsanto’s patented Roundup Ready gene. Schmeiser’s lawyer had argued (see June 5, 2000-June 21, 2000) that the samples had been taken illegally and were invalid because they were not obtained, stored, or tested in a scientific manner or by independent parties. Schmeiser’s lawyer also raised questions about the authenticity of the samples noting multiple contradictions in the observed properties of the samples as they changed possession from one person to another. The judge dismissed all of these concerns insisting that certain “conclusions of fact” could nonetheless be “drawn from evidence of the various tests.”
[Monsanto Canada Inc. v. Percy Schmeiser, 3/29/2001, pp. 34 ; Star Phoenix (Saskatoon), 3/30/2001] That based on expert testimony and results from the tests on samples taken from Schmeiser’s property, “none of the suggested possible sources of contamination of
Schmeiser’s crop was the basis for the substantial level of Roundup Ready canola growing in field number 2 in 1997.” (“Field number 2” is the field where Schmeiser discovered the presence of Roundup Canola in 1997 (see Summer 1997)) [Monsanto Canada Inc. v. Percy Schmeiser, 3/29/2001, pp. 51 ] That “the source of the Roundup-resistant canola in the defendants’ 1997 crop is really not significant for the resolution of the issue of infringement which relates to the 1998 crop.”
[Monsanto Canada Inc. v. Percy Schmeiser, 3/29/2001, pp. 51 ] That Schmeiser infringed on Monsanto’s patent when he planted seed that he “knew or ought to have known” contained Monsanto’s patented gene. Judge MacKay disagrees with the defense’s argument that in order to have used the essence of Monsanto’s patent, Schmeiser would have had to have applied Roundup to his crop. According to MacKay, the acts of replanting and selling the seed in and of themselves constituted use of the patent’s essence. “Growth of the seed, reproducing the patented gene and cell, and sale of the harvested crop constitutes taking the essence of the plaintiffs’ invention, using it, without permission.”
[Monsanto Canada Inc. v. Percy Schmeiser, 3/29/2001, pp. 51-53 ; Star Phoenix (Saskatoon), 3/30/2001] That the law of admixture and the precedent set by “stray bull” cases do not apply to this case. What distinguishes this case from cases where admixture is relevant, says MacKay, is that “Monsanto does have ownership in its patented gene and cell and pursuant to the [Patent] Act has the exclusive use of its invention.”
[Monsanto Canada Inc. v. Percy Schmeiser, 3/29/2001, pp. 55-56 ] That Monsanto’s patent is valid. MacKay rejects Zakreski’s argument that the Harvard Mouse case relates to this case in the way he described. Rather according to MacKay, while that case concerned the patent on an organism, this case concerns a gene, the process for its insertion, and the cell derived from that process. As such, the Harvard Mouse case “implicitly support[s] the grant of the patent to Monsanto.”
[Monsanto Canada Inc. v. Percy Schmeiser, 3/29/2001, pp. 40 ] That Monsanto’s patent rights on its Roundup-resistant gene persist even after it has inserted itself into a plant owned by someone else. Schmeiser’s lawyer had argued (see June 5, 2000-June 21, 2000) that Monsanto’s patent confers only intellectual property rights, not actual property ownership rights, of the gene to the company and that therefore the insertion of Monsanto’s patented gene into a plant owned by someone else does not make that plant or its offspring property of Monsanto. While Judge MacKay agrees with the defense that the property ownership rights over a plant would not change in such a case, MacKay says that the interest of the person who owns that plant would nonetheless be subject to Monsanto’s patent rights. “Thus,” writes Judge MacKay, “a farmer whose field contains seed or plants originating from seed spilled into them, or blown as seed, in swaths from a neighbor’s land or even growing from germination by pollen carried into his field from elsewhere by insects, birds, or by the wind, may own the seed or plants on his land even if he did not set about to plant them. He does not, however, own the right to the use of the patented gene, or of the seed or plant containing the patented gene or cell.”
[Monsanto Canada Inc. v. Percy Schmeiser, 3/29/2001, pp. 40-41 ; Star Phoenix (Saskatoon), 3/30/2001; Natural Life, 5/2001] That Monsanto did not implicitly waive its patent rights on the Roundup Ready gene because of any alleged failure to control the spread of its gene, as the defendant argued (see June 5, 2000-June 21, 2000). According to Judge MacKay, Monsanto has taken adequate steps to control the spread of its product. He cites Monsanto’s efforts to limit the use of the invention to only those plots of land farmed by licensed farmers for which the technology use fee has been paid; the company’s efforts to enforce the terms of its Technology Use Agreement; and the company’s efforts to remove plants that have invaded the properties of other farmers. MacKay makes little of the several photographs that Schmeiser had taken of Roundup-resistant Canola volunteers that he discovered scattered though out his community. [Monsanto Canada Inc. v. Percy Schmeiser, 3/29/2001, pp. 40-44 ] To issue an injunction barring Schmeiser from planting “any seed saved from plants which are known or ought to be known to be Roundup tolerant, and from selling or otherwise depriving the plaintiffs of their exclusive right to use plants which the defendants know or ought to know are Roundup tolerant, or using the seeds from such plants.”
[Monsanto Canada Inc. v. Percy Schmeiser, 3/29/2001, pp. 55 ] That Schmeiser’s unauthorized use of Monsanto’s patented gene entitles the company to the profit realized by Schmeiser as a result of the sale of his 1998 crop, plus interest. However Judge MacKay believes that Monsanto has overstated Schmeiser’s profit because it did not factor in his labor as an expense. MacKay also disagrees with the plaintiff that exemplary damages are warranted in this case. MacKay gives Schmeiser and Monsanto three weeks to agree on the value of Schmeiser’s 1998 profit. If they cannot come to an agreement by then, Schmeiser is to pay Monsanto the sum of $15,450 CAD, or $15 CAD/acre planted and harvested in 1998. [Monsanto Canada Inc. v. Percy Schmeiser, 3/29/2001, pp. 56-60 ]

Statements

“I was really alarmed at the fact that it said in the decision that it doesn’t matter how it gets into a farmer’s field—whether it blows in or cross pollinates, floods, comes in on farm machinery—it doesn’t belong to the farmer. It belongs to Monsanto.… Even if a farmer knows it or ought to know it, he is still apparently committing an infringement.”
— March 29, 2001 [Star Phoenix (Saskatoon), 3/30/2001, pp. 121]

“What’s really important for us [Monsanto] is the 30,000 Canadian farmers who have signed agreements now know that there is a commitment to fair play and a level playing field.… They can continue to access this technology and gain value from it if that is something they choose to do.”
— March 29, 2001 [Star Phoenix (Saskatoon), 3/30/2001, pp. 121]

“We were concerned with the finding that Monsanto exercised sufficient control of the spread of the gene in the environment not to have waived the (patent) rights”
— March 29, 2001 [Star Phoenix (Saskatoon), 3/30/2001, pp. 121]

Commentaries

“Let’s say you know that you have one or more of Roundup Ready, Liberty Link, Navigator/Compas or SMART canola (tolerant to the herbicides glyphosate, glufosinate ammonium, bromoxynil, or some ALS inhibitors, respectively) on your land. You know this because, like Schmeiser, the plants didn’t die when you used the corresponding herbicide. So, what do you do? Do you call up the company (Monsanto, Aventis, and/or Pioneer, respectively), inform them that you have infringed upon their respective patent(s), and ask them to come out for a visit—then hope they arrive with a sprayer and not a subpoena? If the former, no one will ever know, will they? Or do you wait for a neighbour to report you for suspected brownbagging, using the anonymous hotline set up by Monsanto for that purpose? If the respective compan(-ies) come out and actually do spray out the offending plants, do you call them back again a few weeks later, when late germinating canola has emerged in your wheat or pea crop? How is it that they are going to eradicate these late germinating, potentially seed-bearing HT plants in your established crop? Will they compensate you for damage done to your crop in the process, or from spray drift (a particular problem with the herbicide of choice, 2,4-D) to your adjoining crops—or your neighbours’? What if it was canola you were intending to plant in the contaminated field? You know that you will not be able to distinguish volunteer HT canola from whatever canola you have planted. You know that volunteer HT canola will set seed and shatter, just like your sown canola, recontaminating the land with patent-infringing seed. By definition, if you grow canola on land known to have HT canola in the seed bank, your problems will necessarily amplify over time. Where you had one HT plant this year, you could have dozens next year. So—do you abstain from growing canola entirely? For how long, given that fresh contamination can occur annually? Or do you take responsibility yourself for eliminating the proprietary plants? Do you adjust your crop rotation, your herbicide expenditures—and your bottom line—to cope with contamination that you did not want and could not stop, and that will reoccur annually so long as neighbours choose to grow HT canola? Why should non-GM growers be obliged to adjust their rotation and herbicide schedules and field design in order to protect their own crops from contamination from neighbouring GM crops? Why should non-GM growers have to absorb costs of coping with gene flow that is unwanted, involuntary and unavoidable—or face prosecution? Why should those who have managed their crop specifically for the high-premium GM-free market be forced to lose the premium because of contamination from neighbouring land? Why should any farmer be forced to accept GM contamination in the seed they sow on their own land? Why should taxpayers be obliged to support the mushrooming government infrastructure needed to monitor, regulate, and negotiate to keep GM crops in the marketplace, and the virtually endless costs of recalling contaminated seed and food products from the market? Why should consumers have to pay more for food that is worth no more (and arguably, less to them) because the costs of dealing with unwanted GM both on the farm and in the marketplace must, necessarily, be passed on to the consumer? Why should all growers be penalized by plummeting crop prices incurred because a minority of growers chose to grow GM, causing traditional clients to refuse to buy GM-contaminated grain and instead to patronize offshore sources?… What happens when the traits that move are not HT, but vaccines, pharmaceuticals, plastics, and industrial enzymes? When is the Canadian government going to stop promoting the commercialization of a technology which has so clearly been released prematurely into the marketplace, and which so clearly externalizes its true costs of production involuntarily and unavoidably to its own citizens?”
— (June 2001) [Catholic New Times, 6/17/2001]

Monsanto’s Bollgard Bt cotton fares poorly during a one-year trial period in South Sulawesi, a province of Indonesia. During a drought, much of the crop suffers from a population explosion in cotton bollworm (Helicoverpa armigera), though the pest has no effect on local varieties. Other pests also attack the crop. As a result, farmers are forced to purchase additional pesticides and use them in larger amounts than is usually necessary. Monsanto had said its Bt cotton would require less pesticide. It also claimed its product would produce yields as high as 3 tons per hectare, and even promised some farmers they would see 4-7 tons per hectare. But the average yield turns out to be only 1.1 ton per hectare with 74 percent of the total area planted actually producing less than one ton per hectare. Approximately 522 hectares experience complete failure. As a result of the poor harvest, 70 percent of the 4,438 farmers participating in the experiment are unable to repay the loans they obtained to buy the seed. They had purchased the cotton seed on credit for Rp 40,000/kg from Branita Sandhini, a Monsanto subsidiary, as part of a package deal that also included pesticide, herbicide (including Roundup), and fertilizer. By comparison, Kanesia, a non-transgenic cotton that is grown by other farmers in the area costs only Rp 5,000/kg. Not only does the farmers’ purchase agreement with Branita Sandhini require that they pay these high prices, it also prohibits them from saving and replanting harvested seed. After harvest, they rely on the same company to purchase their crop. However, before buying the harvest, Branita Sandhini asks the farmers to sign a new contract for the following year. In the new contract, the seed prices are double the previous year’s. Fearing that the company will refuse to buy their harvest if they do not sign, many indebted farmers reluctantly agree to the new terms. Others burn their fields in protest. One woman recalls, “The company didn’t give the farmer any choice, they never intended to improve our well being, they just put us in a debt circle, took away our independence and made us their slave forever. They try to monopolize everything, the seeds, the fertilizer, the marketing channel and even our life.”
[Jakarta Post, 6/1/2002; Nation (Jakarta), 9/27/2004; Institute for Science in Society, 12/5/2004; Institute for Science in Society, 1/26/2005]

Don Carlson, president of the Humboldt and District Marketing Club, contends in an op-ed piece published by the Saskatoon Star Phoenix that herbicide-tolerant crops, such as Roundup Ready Canola, have resulted in numerous benefits for farmers. He says these benefits include “reduced tillage, earlier seeding, lower fuel and chemical costs, less erosion and less salinity.” He says he and others felt compelled to write the op-ed in response to all the negative information about GM crops, which they blame on Monsanto’s lawsuit against farmer Percy Schmeiser. [Star Phoenix (Saskatoon), 6/22/2001]

The US Department of Agriculture (USDA) and Delta & Pine Land conclude negotiations on a licensing agreement for genetic seed sterility technology. The technology would be used to make seeds that produce sterile plants as a way for companies to prevent farmers from saving and replanting proprietary seeds. The sterile seeds have been dubbed “terminator” seeds and “suicide” seeds. Defenders of the technology say it can be used to make genetically modified plants “biosafe” since the plants would be unable to spread their genes to other plants. The USDA and Delta & Pine Land jointly hold three patents on this technology, the first being issued in March 1998. The licensing agreement, under negotiation for some time, establishes the terms and conditions under which the company can use the technology. One of the terms of the agreement is that Delta & Pine Land would not be permitted to use the technology in any heirloom varieties of garden flowers and vegetables. Critics say this is hardly a restriction considering that biotechs have never expressed any interest in heirloom plants—rather their interest is in commercial agriculture. The license also prohibits the company from making any terminator seeds available before January 1, 2003. Any seeds using the technology would also have to be tested for safety by the USDA, the agreement says. Also, the agreement requires that the USDA allocate any royalties it receives to the USDA’s technology transfer efforts. [US Department of Agriculture, 8/1/2001; Rural Advancement Foundation International, 8/3/2001]

Monsanto files a lawsuit against Saskatchewan farmer Kelly Ryczak who it says illegally grew and sold the company’s patented Roundup Ready Canola seeds in 1999, 2000, and 2001. The company claims he “improperly obtained glyphosate-resistant canola seeds” from his father, Metro Ryczak, or another licensed farmer. [Star Phoenix (Saskatoon), 7/19/2001] The lawsuit is settled in April 2002 with a settlement agreement requiring Ryczak to pay Monsanto an undisclosed sum of money over a period of several years. [Star Phoenix (Saskatoon), 4/18/2002]

Investigators with Robinson Security visit canola fields farmed by Carlyle Moritz to look for evidence that he is illegally growing Monsanto’s patented Roundup Ready Canola. They reportedly take samples from canola plants growing in a nearby right-of-way. Moritz, who works for Percy Schmeiser, rents the land from his mother. [Star Phoenix (Saskatoon), 7/20/2001]

Monsanto says there are additional farmers, fewer than 100, who it believes are infringing on the patent they have for Roundup-resistant plants. “Whether or not those will go forward [to court] or not time will tell,” Monsanto spokeswoman Trish Jordan says. “Our preference is to settle these things out of court, but that doesn’t always happen.”
[Canadian Press, 7/21/2001]

Canadian farmer Percy Schmeiser tours Africa warning farmers not to grow GM crops and sharing with them his story about being sued by biotech giant Monsanto. According to Schmeiser, representatives of the company follow him to almost every meeting, sometimes several in a single day. At one meeting, a Monsanto representative demands that he be given equal time to speak. But the organizers of the meeting, according to Schmeiser, tell him, “Get lost! If you want to speak to a meeting, call your own.”
[Alive, 2/2002; Institute of Science in Society, 9/2002] At one point during his trip, while in South Africa, Schmeiser talks to a group of large landowners. The next day, about 30 of them declare a non-GMO zone and cancel their orders for Monsanto’s GM soya. Schmeiser later recalls, “That got Monsanto against me.” Later, Schmeiser runs into Wally Green of Monsanto in Johannesburg after the two spoke to Parliament. Green was not happy. According to Schmeiser, Green tells him, “Nobody stands up to Monsanto. We are going to get you and destroy you. When you get back to Canada, we’ll get you.”
[Institute of Science in Society, 9/2002]

When Dr. Ignacio Chapela, a microbial ecologist who recently discovered the presence of genetically modified (GM) genes in Mexican maize (see October 2000), meets with a Mexican agricultural official to discuss the GM contamination, he is warned not to publish his research. Chapela later recalls in an interview with BBC Newsnight, “He [told] me how terrible it was that I was doing the research and how dangerous it would be for me to publish.” When he refuses to back off the issue, the official suggests that Chapela join a research team tasked with proving that the suspected GM genes are actually naturally occuring gene sequences similar to the ones in GM corn. “We were supposed to find this in an elite scientific research team of which I was being invited to be part of and the other people were two people from Monsanto and two people from Dupont supposedly… .” Monsanto denies its scientists were involved in any such study. Chapela also meets with Mexico’s Ministry of the Environment and Natural Resources, whose officials are concerned about the discovery. They launch their own investigation and also find evidence of contamination (see September 18, 2001). [BBC, 6/2/2002]

Upset about the Indonesian government’s decree (see January 2003-August 2003) to require an environmental impact assessment prior to the cultivation of Monsanto’s Bollgard Bt cotton in the province of South Sulawesi, Monsanto steps up its lobbying. Representatives of the company reportedly meet with a senior environment ministry official on several occasions. But after it becomes apparent that its lobbying efforts are having little effect, it resorts to bribery. [Jakarta Post, 1/10/2001; US Securities and Exchange Commission, 1/6/2005; US Department of Justice, 1/6/2005] In February 2002, a US-based Monsanto senior manager, instructs the company’s lobbyist, PT Harvest International Indonesia, to “incentivize” the senior environment official who had ordered the environmental impact study. [Jakarta Post, 1/10/2001; US Securities and Exchange Commission, 1/6/2005] Some time later, an employee of the consulting firm visits the senior Indonesian official and hands him an envelope containing $50,000 in $100 bills. The official accepts the money but says he can’t guarantee that he will be able to get the decree repealed. The senior Monsanto manager instructs the consultant to disguise the bribe as “consulting fees” in his invoice to Monsanto. The firm also includes in its invoice the additional income taxes it will owe because of the phony fees, bringing the invoice’s total to $66,000. [US Securities and Exchange Commission, 1/6/2005; Asia Times, 1/20/2005] Harvest’s president-director, Harvey Goldstein, a US citizen, will later deny that his company was involved in any bribery. “Harvest has never been involved in corruption whatsoever,” he will tell reporters. [Jakarta Post, 1/14/2001] The identity of the Monsanto manager is never revealed. According to the US Justice Department, that person oversees certain activities in the Asia-Pacific region. [Associated Press, 1/6/2001] Despite Monsanto’s $50,000 bribe, the senior official never reverses the requirement for the environmental impact assessment. [Jakarta Post, 1/10/2001; BBC, 1/7/2005]

Two farmers from Saskatchewan, Larry Hoffman and Dale Beaudoin, file a class action lawsuit against Monsanto and Aventis alleging that the two companies’ genetically modified (GM) canola genes have infested their organic canola crops. The contamination has made it impossible for them to get their products certified as organic and as a result they are not able to sell it on the organic market. Arnold Taylor, president of Saskatchewan Organic Directorate (SOD), tells the Canadian Press that “it is almost impossible to buy uncontaminated seed let alone contend with contamination from pollen drift.” According to Marc Loiselle, a director with the same organization, organic grain and oilseed traders have zero tolerance for GM contamination. Representing the farmers is Terry Zakreski, the same lawyer who represents Percy Schmeiser. The suit is also seeking to stop the introduction of modified wheat, which the two companies are developing and which is expected to hit the market in a few years. “We have lost canola as a crop in our rotations because of genetic contamination, but we obviously cannot afford to lose wheat which is our largest crop and largest market,” Arnold Taylor says. [Star Phoenix (Saskatoon), 10/12/2001; Canadian Press, 1/30/2002]

The Justice Department and the Securities and Exchange Commission (SEC) launch an investigation into allegations that Monsanto representatives paid bribes to Indonesian officials in an effort to advance its business interests there. The Justice Department and SEC were reportedly informed of the suspected bribery by Monsanto itself, which says it launched its own investigation after noticing irregularities in the accounting of its Jakarta-based subsidiary. [Wall Street Journal, 5/27/2004] The investigation lasts about three years. On January 6, 2005, the Justice Department and the SEC announce that Monsanto has agreed to pay a $1 million penalty to the Justice Department, which has charged the company with violating the US Foreign Corrupt Practices Act. The company is also ordered to pay $500,000 to the US Securities and Exchange Commission (SEC). As part of the settlement, Monsanto will allow an “independent compliance expert” to audit and monitor the company and to ensure there are no further breaches of the US Foreign Corrupt Practices Act. The company says it accepts full responsibility and has taken action against those involved. “We accept full responsibility for the improper activities that occurred in connection with our Indonesian affiliates,” says Lori Fisher, one of the company’s spokespersons. “Such behavior is not condoned nor accepted at Monsanto, and the people involved are no longer employed by Monsanto.” [Associated Press, 1/6/2001; Reuters, 1/7/2001; BBC, 1/7/2005; Sunday Herald, 1/9/2005]

Percy Schmeiser’s lawyer, Terry Zakreski, in his argument before the Canadian Federal Court of Appeals, cites 17 grounds for the appeal of Judge MacKay’s March 2001 decision (see March 29, 2001) against Schmeiser. The judge had ruled that Schmeiser had infringed on Monsanto’s patent when he planted canola seed in 1998 that he “knew or ought to have known” was resistant to Roundup. [Star Phoenix (Saskatoon), 5/16/2002; Star Phoenix (Saskatoon), 5/17/2002; Star Phoenix (Saskatoon), 5/17/2002; Star Phoenix (Saskatoon), 5/17/2002] Monsanto lawyer Roger Hughes is also present for a cross-appeal to contest MacKay’s decision to award the company only $19,832 CAD—the figure MacKay determined was Schmeiser’s profit from the sale of his 1998 crop. According to Monsanto’s calculations, Schmeiser’s profits were $105,935 CAD, or 74 percent of his $142,625 CAD gross. [Star Phoenix (Saskatoon), 5/17/2002]Zakreski's Grounds for Appeal - Some of the issues that Zakreski contends MacKay made erroneous judgments about include the following (As summarized in the 12/31/2001 Court of Appeals Submission): Interpreting the Patent Act and the Patent so as to deprive farmers the ownership of canola plants and seeds containing the patented gene. Zakreski says that MacKay was wrong to conclude that the Patent Act gives Monsanto “ownership in its patented gene and cell” because the act only grants it the right to make, construct, and use the patented gene and sell it to others to be used. It does not grant ownership. Zakreski argues that according to common law, ownership rights come from possession and control of, or intent to control, a property; and Schmeiser had both possession and control. Zakreski says MacKay’s decision permits Monsanto “to invade the common law property rights of [a farmer] in order to assert its patent rights” merely because its “patented gene happens to be in a seed or plant belonging to a farmer.”
[Memorandum of Fact and Law of the Appellants, Percy Schmeiser and Schmeiser Enterprises Ltd. Percy Schmeiser v. Monsanto Canada Inc., 12/3/2001, pp. 12-14 ]Interpreting the Patent Act and the Patent so as to deprive farmers of there vested right to being able to save and re-use their own canola seed that may contain the patented gene. Zakreski says that the implication of MacKay’s interpretation “is that no farmer who becomes aware, or ought to be aware, that his canola contains the gene patented by [Monsanto] will have the right to save and reuse his canola seed.”
[Memorandum of Fact and Law of the Appellants, Percy Schmeiser and Schmeiser Enterprises Ltd. Percy Schmeiser v. Monsanto Canada Inc., 12/3/2001, pp. 13 ]Finding that it is not necessary that a farmer take advantage of the patented gene by in-crop spraying with a glyphosate based herbicide such as Roundup in order to infringe the Patent. Zakreski says that MacKay was wrong to conclude that Schmeiser had used the patent by merely growing plants containing Monsanto’s gene. He argues that the utility of the patented gene can only be exploited when the crop is sprayed with Roundup, which Schmeiser did not do. The gene, notes Zakreski, is not used at any other time and is certainly not used when the plant is merely growing because the patented gene does not help the plant grow in any way. He cites a case in British Admiralty law, where a sea captain was accused of patent infringement because he had a patent-protected pump aboard his ship. The court found there was no infringement because the pump was not used . [Star Phoenix (Saskatoon), 6/21/2001; Memorandum of Fact and Law of the Appellants, Percy Schmeiser and Schmeiser Enterprises Ltd. Percy Schmeiser v. Monsanto Canada Inc., 12/3/2001, pp. 21-28 ]Determining that the Respondents had not waived their patent rights by the “unconfined release” of their invention. Zakreski says that while MacKay apparently did not disagree that the “unconfined release” of an invention can result in the waiver of a patentholder’s rights, the judge believed that Monsanto took adequate steps to control the spread of its patented gene. Zakreski says this is not true. He says that several of the steps undertaken by Monsanto cited by MacKay were responses prompted by the fact that the gene had already spread. Thus Monsanto’s actions are evidence that Monsanto had “already lost control of their own product.” Zakreski also notes that where Monsanto had an opportunity to reduce the risk of gene drift, it chose not to. For example, (1) Monsanto’s Technology Use Agreement “places no restrictions on growers aimed at reducing (much less preventing) the escape of genetically modified canola,” does not require seed segregation, does not require a buffer zone, and did not require methods of transport that would have prevented seed loss; and (2) at Monsanto’s informational meetings, which all new Roundup Ready Canola growers are required to attend, farmers were not warned about cross-pollination, not instructed to maintain a buffer strip, not told to warn neighbors who grow non-transgenic canola, not told to segregate seed, and not told to prevent seed loss during transport. [Star Phoenix (Saskatoon), 6/21/2001; Memorandum of Fact and Law of the Appellants, Percy Schmeiser and Schmeiser Enterprises Ltd. Percy Schmeiser v. Monsanto Canada Inc., 12/3/2001, pp. 29-35 ]Finding that there was “no evidence” that the canola seed used by the appellants to see the 1997 canola crop, included genetically modified seed and pollen carried into field #6 from a neighbor’s field. Zakreski says that this statement is false because it ignores Schmeiser’s testimony that his 1997 canola crop “came from field number 1 and field number 6.”
[Memorandum of Fact and Law of the Appellants, Percy Schmeiser and Schmeiser Enterprises Ltd. Percy Schmeiser v. Monsanto Canada Inc., 12/3/2001, pp. 35-37 ]Giving undue weight and significance to the internal sampling and testing done by the Respondents. As he did in his original closing argument, Zakreski argues that the test results were invalid because the samples were not obtained, stored, or tested in a scientific manner or by independent parties. He also notes that there were multiple contradictions in the observed properties of the samples as they changed possession from one person to another, suggesting that the seed that was ultimately tested may not have actually been seed from Schmeiser’s farm. [Memorandum of Fact and Law of the Appellants, Percy Schmeiser and Schmeiser Enterprises Ltd. Percy Schmeiser v. Monsanto Canada Inc., 12/3/2001, pp. 37-41 ]Determining that the Respondents were entitled to the profits made by Schmeiser Enterprises Ltd. for its entire 1998 canola crop. Zakreski notes that (1) Monsanto’s patent grants it exclusive rights to sell its invention “to others to be used”; and (2) that Schmeiser sold his canola crop “to a grain elevator to be sent to a commercial crushing plant to make the canola seed into canola oil.” Thus, “the presence or absence of Monsanto’s patented gene added no value whatsoever to the canola seed which was, clearly, the Appellants’ property.” The judge’s ruling to award 100 percent of Schmeiser’s profit to Monsanto was erroneous, Zakreski argues, since Schmeiser “realized no profit or advantage from the presence of the patented gene.”
[Memorandum of Fact and Law of the Appellants, Percy Schmeiser and Schmeiser Enterprises Ltd. Percy Schmeiser v. Monsanto Canada Inc., 12/3/2001, pp. 43 ]Issuing an injunction that would impair the Appellants from engaging in the traditional farming practice of saving and re-using canola seed during the term of the Patent. Zakreski says that the injunction would make it illegal for Schmeiser to farm because unwanted Roundup Ready Canola volunteers continue to grow in his fields (see Spring 1999), even though he planted his fields in 1999 with entirely new seed (see Summer 1999). [Memorandum of Fact and Law of the Appellants, Percy Schmeiser and Schmeiser Enterprises Ltd. Percy Schmeiser v. Monsanto Canada Inc., 12/3/2001, pp. 44 ]

An ad hoc expert panel created by the sixth conference of the Biodiversity Convention convenes in Montreal to consider the impact that genetic use restriction technology (GURT), also known as terminator technology, would have on small farmers, indigenous peoples, and local communities. The expert panel hears from 11 groups including the US, Canada, two individual farmers, an indigenous rights group, four civil society organizations, the International Seed Federation, and the International Union for the Protection of New Varieties of Plants (UPOV). [Collins and Krueger, n.d. ; ETC Group, 4/17/2003; Convention on Biological Diversity, 9/29/2003 ] The paper presented by UPOV, completed in January (see January 10, 2003), is not well-received by the US or industry representatives. Though the UPOV is generally an ardent supporter of intellectual rights protections, its analysis argues that GURT technology could threaten the interests of small farmers. The paper is so unwelcome, in fact, that the US and the International Seed Federation will succeed in pressuring the UPOV to revise it (see March 13, 2003-April 11, 2003), eliminating all references to GURT from the body of the paper.
Prepared by Monsanto’s Roger Krueger and Harry Collins of Delta & Pine Land (D&PL), the International Seed Federation’s analysis takes the position that GURT technology would be advantageous for small farmers. Their paper argues that GURT would benefit small farmers and indigenous peoples by providing them with more options. “The International Seed Federation (ISF) believes that GURTs have the potential to benefit farmers and others in all size, economic and geographical areas… In reality, the potential effects of the GURTs may be beneficial to small farmers… ,” the paper asserts. “It is the strong belief and position of the ISF that GURTs would potentially provide more choice, to the farmers, rather than less choice.” Kruefer and Collins also say the technology could be used to prevent the contamination of non-transgenic plants with genetically modified genes and thus could be “quite positive for the environment and biodiversity.”
[Collins and Krueger, n.d. ; ETC Group, 4/17/2003; Convention on Biological Diversity, 9/29/2003 ] The expert panel’s final report will list 35 “potential negative impacts” of GURT on small farmers and local communities and only nine “potential positive impacts.” It will recommend, among other things, “that parties and other governments consider the development of regulatory frameworks not to approve GURTs for field-testing and commercial use.”
[Convention on Biological Diversity, 9/29/2003 ]

St. Louis Federal District Judge Rodney W. Sippel allows an antitrust case against Monsanto Company, Bayer, Syngenta, and Pioneer seed companies to proceed. According to the lawsuit, which was filed in 1999 (see March 15, 2001), documents show that the companies conspired during the late 1990s to fix prices and control the seed market. The second part of the lawsuit—which blames the companies for the huge losses suffered by farmers because of global opposition to genetically modified crops—is dismissed. [New York Times, 9/24/2003] Judge Sippel was once listed as one of three lawyers defending Monsanto in a similar case. [Guardian, 1/10/2004]

At the ninth meeting of the Scientific Body of the United Nations Convention on Biological Diversity (SBSTTA), held in Montreal, four countries—Canada, New Zealand, Argentina, and Brazil—convince the body to submit a recommendation to the next meeting of the Biodiversity Convention to forego action on an expert panel report. They argued that the report was flawed because it lacked scientific rigor. The report—commissioned by members of the Biodiversity Convention in late 2002—had identified numerous potential negative impacts that terminator technology could have on small farmers, indigenous peoples, and local communities (see February 19, 2003-February 21, 2003). If the member countries of the Biodiversity Convention, scheduled to meet in February 2004, accepts the SBSTTA’s recommendation to forego action, the issue will not be considered again until 2006. “SBSTTA9’s decision is wrong and dangerous,” says Alejandro Argumedo of the Indigenous Peoples Biodiversity Network. “Giving four governments the right to derail a report on the impact of terminator on indigenous peoples and local communities is like saying that the voices of these communities are not important, and that the social and economic impacts of terminator can be dismissed.” The ETC Group, a Canadian-based organization that opposes terminator technology, suggests that the presence of representatives from biotech firms Monsanto and Delta & Pine Land may have had something to do with the four countries’ objection to the expert panel report. The organization notes that industry representatives from these very same companies had been involved in the expert panel discussion and had submitted a report insisting that GURT technologies would benefit small farmers and indigenous peoples by providing them with “more choice.” Both Monsanto and Delta & Pine Land have patents on GURT technology. [Convention on Biodiversity, 11/14/2003; ETC Group, 11/14/2003]

Monsanto announces that it is temporarily halting sales of genetically modified soybean seeds because farmers are saving and replanting patented seed, making it difficult for the company to collect royalties. “We are suspending our soybean business… because it’s simply not profitable for us,” says Federico Ovejero, a spokesman for Monsanto Argentina. “We remain committed to releasing our technology in places where we can ensure a fair return on our investment.” Monsanto has been pressuring Argentina to clamp down on what it says is “seed piracy.”
[Associated Press, 1/19/2004; Latin America News Digest, 1/20/2004; ETC Group, 2/26/2004] Monsanto estimates that more than half of the seeds planted during the October-November planting season appears to have been pirated. [New York Times, 1/20/2004] One Argentinean seed industry executive warns that Monsanto’s action “is the first warning sign that all new technologies will abandon us if intellectual property rights are not respected.”
[Associated Press, 1/19/2004; ETC Group, 2/26/2004]

About 70 indigenous leaders representing 26 Andean and Amazon communities meet in the Peruvian mountain village of Choquecancha for two days to draft a report on the potential impacts terminator seeds would have on their communities if the international moratorium on the technology were to be lifted. The report will be submitted to a UN working group which has been tasked with examining “the potential socio-economic impacts of genetic use restriction technologies on indigenous and local communities.” The UN working group will submit recommendations to the next conference of the Convention on Biological Diversity which will decide whether or not to continue its de facto ban on terminator seeds. The meeting of indigenous leaders is held under the auspices of the Quechua-Aymara Association for Nature and Sustainable Development (ANDES) and the International Institute for Environment and Development. The indigenous leaders say in their report that they are concerned that pollen from terminator seeds could transfer sterility to and effectively kill off other crops and plant life. Another worry is that use of the technology would increase their dependence on the seed industry, a conclusion that was also reached by the UN Agriculture and Food Organization’s Ethics Panel in 2000 (see September 26, 2000-September 28, 2000). The group says the expansion of monocultural farming and the use of terminator technology could put the region’s 3,000 varieties of potato at risk. The indigenous leaders say they are especially concerned about a patent that has been obtained by Syngenta on technology that would be used to produce sterile potato seeds. Syngenta’s seeds would only grow if treated with chemicals. “Terminator seeds do not have life,” says Felipe Gonzalez of the indigenous Pinchimoro community. “Like a plague they will come infecting our crops and carrying sickness. We want to continue using our own seeds and our own customs of seed conservation and sharing.”
[Development, 9/27/2005 ; Inter Press Service, 10/11/2005; International Institute for Environment and Development, 10/6/2006]

At a UN meeting in Granada, the Convention on Biological Diversity’s “Working Group on Article 8(j)” meets ahead of the Convention’s eighth biennial meeting to discuss implementation of Article 8(j) and related provisions of the Convention, as requested by the seventh conference of the Convention that took place in 2004 in Kuala Lumpur. [Convention on Biodiversity, 2/20/2004] Article 8(j) of the convention calls on member countries to protect the traditional knowledge, innovation, and practices of indigenous peoples and peasant farmers. One of the group’s tasks is to “consider the potential socio-economic impacts of genetic use restriction technologies on indigenous and local communities” and make a recommendation based on three previous UN reports (see February 19, 2003-February 21, 2003; February 7, 2005; September 26, 2000-September 28, 2000) and official submissions from indigenous peoples and farmers’ organizations (see September 26, 2005-September 27, 2005). In every one of these reports, terminator technology was considered a threat to the poor. In spite of this, the Australian, New Zealand, and Canadian governments, guided by a US representative (the US has not ratified the Convention on Biological Diversity) and industry lobbyists, push to make the Working Group’s recommendations supportive of terminator technology. Lobbyists for the seed companies include Harry Collins, vice president of Delta & Pine Land, and Roger Krueger of Monsanto. Delta & Pine Land jointly holds three patents on terminator technology with the US Department of Agriculture. According to the ETC Group, a Canadian-based organization opposed to terminator seeds whose representatives are present at this meeting, “With a US government official consulting at her side, the Australian negotiator insisted on deleting reference to the ‘precautionary approach’ and used this as a bargaining chip to win controversial wording for a ‘case-by-case risk assessment’ of terminator.” However, the efforts of these countries to draft a recommendation that would weaken the moratorium on terminator seeds are opposed by the majority of other parties, including Spain, the African Group, Egypt, the Philippines, Norway, Pakistan, Kenya, India, and Brazil. [ETC Group, 1/27/2006; National Farmers Union, 1/27/2006; Canadian Press, 1/30/2006] Australia refuses to budge and it is finally agreed to revise the recommendation to say that further research on terminator technology should include “a case-by-case risk assessment basis with respect to different categories of GURTs technology subject to the precautionary approach.”
[Convention on Biodiversity, 1/27/2005 ]

More than 40 indigenous leaders from the potato producing regions of Peru meet in Cusco to sign a letter calling on Syngenta to discard its patent (US Patent 6,700,039) on a technology that would be used to develop potato seeds that would be sterile unless treated with chemicals. Andean and Aymara farmers fear that such seeds would destroy their centuries-old tradition of saving and sharing seeds, and with it their cultural and social way of life. They also say the technology could result in the disappearance of several of the 3,000 different varieties of potatoes that are grown in the region. [Indigenous Coalition Against Biopiracy in the Andes, n.d. ; International Institute for Environment and Development, 3/21/2006]

Monsanto announces that it will purchase Delta & Pine Land Company, the world’s largest cotton seed company, and the first company to obtain a patent on terminator technology (see March 3, 1998). Monsanto has had its sights on Delta & Pine Land for years. A previous plan to buy the company—announced in 1998 (see May 11, 1998)—fell through in December 1999 (see December 19, 1999). The acquisition means that Monsanto will control over 57 percent of the US cotton seed market. It will also deepen Monsanto’s reach into the developing world, where Delta & Pine Land has subsidiaries in 13 countries—including India, Brazil, Mexico, Turkey, and Pakistan. According to the ETC Group, an outspoken critic of terminator technology, “the takeover means that Monsanto will command a dominant position in one of the world’s most important agricultural trade commodities and that millions of cotton farmers will be under increased pressure to accept genetically modified (GM) cottonseed.” [Monsanto, 8/15/2006; ETC Group, 8/16/2006]

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